Lodi Unified School District (PERB A346E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 77,
Charging Party,
v.
LODI UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. SA-CE-2081-E
Administrative Appeal
PERB Order No. 	Ad-346
F e b r u a r y 	1 1 , 	2005
Appearance: Pinnell & Kingsley by Kim Kingsley Bogard, Attorney, for Lodi Unified School
District.
Before Duncan, Chairman; Whitehead and Shek, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on a request by the Lodi Unified School District (District) that the Board
excuse its late-filed response to exceptions filed by the California School Employees
Association and its Chapter 77 (CSEA) of an administrative law judge's (ALJ) proposed
decision. The request is supported by the Declaration of Kim Kingsley Bogard (Bogard) of
Pinnell & Kingsley, attorneys for the District. The declaration was signed under penalty of
perjury and contained the documents referenced below.
BACKGROUND
Bogard states that she was ill on December 13, 2004, the date the filing was due. She
left the office at 4:20 p.m., at which time the District's response was complete and ready for
filing. 	On leaving, she left the clerical duties of service and filing to her assistant who had
proven trustworthy in the past. Despite Bogard's clear directions, the assistant served the
response but did not file it with PERB either by fax or by personal service. As a result of this

clerical error, the response was filed one day late, on December 14. 	The proof of service
shows that the response was properly and timely served on CSEA. In addition, according to
Bogard, as a result of its receipt of the response, CSEA learned of an error in its exceptions to
the ALJ's proposed decision and by letter dated December 17, 2004, sought to correct the
error. That letter, according to Bogard, actually comprises a rebuttal to the District's response.
Thus, Bogard asserts that it would be unfair to exclude the District's response and permit
CSEA's "letter of correction."
DISCUSSION
Bogard asks the Board to excuse the District's late-filed response to CSEA's
exceptions. Under PERB Regulation 32136,1 the Board may excuse a late filing for good
cause. 	The Board has found good cause in situations where the justification was "reasonable
and credible." (Barstow Unified School District (1996) PERB Order No. Ad-277 (Barstow).)2
The Board has deemed "honest mistakes," such as mailing or clerical errors, to show good
cause. 	(State of California (Department of Transportation) (2003) PERB Order No.
Ad-326-S.) For example, in The Regents of the University of California (Davis, Los Angeles,
Santa Barbara and San Diego) (1989) PERB Order No. Ad-202-H (Regents), the Board
excused a late filing based upon an attorney's plausible explanation that an ordinarily reliable
clerical employee inadvertently sent the document by regular instead of certified mail on the
last day for filing.
The facts in this case are similar to those in Regents. Bogard completed the District's
response to CSEA's exceptions on the due date, December 13. She had to leave work early
T PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq.
The request cited PERB precedent using PERC citations. We ask that the District use
formal PERB citations for referencing cases in the future filings.
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that day because she was ill but left the document to be filed and served by a trusted assistant
with specific instructions regarding what needed to be done. 	Instead, the assistant served the
response but failed to file the document with PERB either by fax or by personal service. As a
result, the District's response was filed with the Board the next day, December 14. In this
situation, we find that Bogard's justification for the District's late filing is reasonable and
credible.
If the justification is found to be reasonable and credible, then the Board evaluates
whether there is prejudice to the opposing party in excusing the late filing. 	(Barstow.) Here,
the proof of service shows that the District's response was properly and timely served on
CSEA. In fact, the response noted an error in CSEA's exceptions prompting CSEA to file a
"correction" dated December 17. Further, CSEA has not claimed prejudice from the District's
late filing.
In light of the above discussion, the Board finds that the District has demonstrated good
cause to excuse its late-filed opposition.
ORDER
The Lodi Unified School District's request that the Board accept its late-filed response
to exceptions filed by the California School Employees Association & its Chapter 77 in Case
No. SA-CE-2081-E is hereby GRANTED.
Chairman Duncan and Member Shek joined in this Decision.
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